Jonattan Guerra-Canales v. William Barr

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 7, 2020
• Docket: 20-3144
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0572n.06

Case No. 20-3144

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Oct 07, 2020 JONATTAN GUERRA-CANALES, ) DEBORAH S. HUNT, Clerk ) Petitioner, ) ) ON PETITION FOR REVIEW OF A v. ) DECISION OF THE UNITED ) STATES BOARD OF WILLIAM P. BARR, Attorney General, ) IMMIGRATION APPEALS ) Respondent. ) )

BEFORE: SILER, SUTTON, and LARSEN, Circuit Judges.

SILER, Circuit Judge. Jonattan Guerra-Canales (“Guerra”) petitions for review of the

Board of Immigration Appeals’ (BIA) decision denying his motion to reopen an in abstentia order

of removal based on lack of notice. Guerra did not establish that his lack of notice was through

no fault of his own. Therefore, we DENY the petition for review.

I.

On October 16, 2016, Guerra, a citizen and national of El Salvador, entered the United

States illegally without being admitted or paroled after inspection by an immigration officer. The

Department of Homeland Security (DHS) apprehended Guerra and took him into custody. On

October 21, 2016, Guerra was personally served with a Notice to Appear (NTA) and Order of

Release, charging him with being removable from the U.S. pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). Case No. 20-3144, Guerra-Canales v. Barr

Both documents gave Guerra’s address as 4846 CB Place, Apt. 8, Springdale, AR 72764. The

DHS’s Notice to the Executive Office for Immigration Review (EOIR): Alien Address (Notice to

EOIR), dated November 14, 2016, lists the same address.

On January 27, 2017, the DHS began removal proceedings against Guerra by filing the

NTA with the Immigration Court (IJ). On February 27, 2017, Guerra filed an application for

asylum and withholding of removal and requested protection under the Convention Against

Torture (CAT). This application lists Guerra’s address as 4846 CB Place, Apt. A, Springdale, AR

72764. On March 3, 2017, the IJ mailed to Guerra a Notice of Hearing (NOH) that his removal

hearing would be held on April 27, 2017 and addressed it to 4846 CB Place, Apt. 8, Springdale,

AR 72764 as indicated on his NTA. The NOH was not returned as undeliverable and it advised

Guerra of the consequences if he should not appear as scheduled. Guerra in the meantime attended

three check-in appointments as required on his Order of Release on (1) November 21, 2016, (2)

May 9, 2017, and (3) November 14, 2017.

On April 27, 2017, the IJ conducted Guerra’s removal hearing but Guerra did not appear

as required. He was then ordered removed in absentia to El Salvador. This order was mailed to

Guerra at 4846 CB Place, Apt. 8, Springdale, AR 72764, and was returned as undeliverable to the

EOIR.

On March 5, 2018, Guerra filed a motion to rescind the in absentia removal order and

reopen proceedings.1 Guerra argued that he did not receive notice of his April removal hearing

and that he had made several phone calls to the EOIR hotline between November 2016 and March

1 The DHS filed a notice that it did not oppose Guerra’s motion on February 28, 2018, but for unknown reasons the IJ did not acknowledge the DHS’s lack of opposition until June 1, 2018, after the IJ denied the motion. The IJ instead states that the DHS had not filed its response in opposition and does not mention the lack of opposition in its decision and order. However, our review is for abuse of discretion, and this issue is relevant but not dispositive. -2- Case No. 20-3144, Guerra-Canales v. Barr

2017, with each indicating his NTA had not been filed and that no hearing had yet been scheduled.

In his original motion, Guerra claimed that: (1) he did not receive timely, adequate or accurate

notice as due process requires; and (2) the proceedings should be reopened sua sponte, in the

alternative. This motion included with its brief: (1) affidavits from Guerra and his sister Flor with

evidence of their address at 4846 CB Place, Apt. A, Springdale, AR 72764; (2) the receipt

confirming Guerra’s application for asylum; (3) his asylum application; (4) evidence Flor was

having issues receiving mail at her address during the relevant time of notice; and (5) Guerra’s

appointment history.

The IJ denied Guerra’s motion to rescind the in absentia removal order and reopen

proceedings. The IJ reasoned that Guerra was personally served with the NTA and that the NTA

informed Guerra of the consequences of failing to appear and for failure to keep his address current

and correct. Both his NOH and order of removal were sent to 4846 CB Place, Apt. 8, Springdale,

AR 72764, with only the order of removal being returned as undeliverable. The IJ held that Guerra

failed in his obligation to promptly update his address with the IJ because the address listed on his

NTA and release paperwork was inaccurate. It held that (1) Guerra did not establish his alleged

lack of notice was due to no fault of his own as required under 8 U.S.C. § 1229a(b)(5)(C); and (2)

Guerra’s situation did not rise to the level of exceptional circumstances required under 8 U.S.C. §

1229a(e)(1) to reopen proceedings sua sponte, as he failed to correct his address with the IJ and

provided no evidence of country conditions to support his claim under CAT or for withholding

removal for the purpose of applying for asylum under 8 U.S.C. § 1231(b)(3).

The BIA affirmed the IJ’s decision without opinion, rendering the IJ’s decision as the final

agency determination. See Ali v. Ashcroft, 366 F.3d 407, 409 (6th Cir. 2004).

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II.

We review a decision denying a motion to reopen under the abuse-of-discretion standard.

Thompson v. Lynch, 788 F.3d 638, 642 (6th Cir. 2015). Where, as here, the BIA summarily affirms

an IJ’s decision without issuing an opinion, the IJ’s decision is deemed the “final agency action to

be reviewed by this Court.” Ali, 366 F.3d at 409. Therefore, whether the IJ erred in finding that

Guerra “did not establish that his alleged lack of notice was through no fault of his own” is properly

reviewed under the abuse of discretion standard. See 8 U.S.C. § 1229a(b)(5)(C).

We review legal issues de novo, “but defer[] to the agency’s reasonable interpretations of

its own precedents.” Bi Xia Qu v. Holder, 618 F.3d 602, 606 (6th Cir. 2010).

III.

Any removable alien, who after written notice, fails to attend a removal proceeding “shall

be ordered removed in absentia if the Service establishes by clear, unequivocal, and convincing

evidence” that written notice was provided. 8 U.S.C. § 1229a(b)(5)(A); see 8 C.F.R. § 1003.26(c).

Written notice “shall be considered sufficient” if provided at the most recent address provided by

the alien. 8 U.S.C. § 1229a(b)(5)(A); see 8 U.S.C. §1229(c); 8 C.F.R. § 1003.26(d). The alien

must “immediately provide (or have provided) . . . a written record of an address and telephone

number (if any) at which the alien may be contacted respecting proceedings.” 8 U.S.C. §

1229(a)(1)(F). An order may be rescinded only if (i) a motion to reopen is filed within 180 days

after the date of removal that demonstrates the failure to appear was due to exceptional

circumstances; or (ii) a motion is filed at any time if the alien demonstrates he did not receive

notice and “the failure to appear was through no fault of the alien.” 8 U.S.C. § 1229a(b)(5)(C)

(emphasis added); see 8 C.F.R. § 1003.23(b)(4)(ii). This motion proceeds under the second

category because Guerra does not claim any “exceptional circumstances.”

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The regulations mandate that if an alien’s address on the NTA is incorrect, “the alien must

provide to the Immigration Court where the charging document has been filed, within five days of

service of that document, a written notice of an address and telephone number at which the alien

can be contacted. The alien may satisfy this requirement by completing and filing Form EOIR-

33.” 8 C.F.R. § 1003.15(d)(1).

A.

Guerra failed to update or correct his address with DHS by filing a Form EOIR-33. The

DHS personally served Guerra with his NTA and Order of Release. Guerra signed both

documents, listing Guerra’s mailing address as 4846 CB Place, Apt. 8, Springdale, AR 72764. The

NTA provides that:

Notices of hearing will be mailed to this address. If you do not submit Form EOIR- 33 and do not otherwise provide an address at which you may be reached during proceedings, then the Government shall not be required to provide you with written notice of your hearing. If you fail to attend the hearing at the time and place designated on this notice, or any date and time later directed by the Immigration Court, a removal order may be made by the immigration judge in your absence, and you may be arrested and detained by the DHS.

The IJ mailed the NOH to 4846 CB Place, Apt. 8, Springdale, AR 72764 and it was not

returned as undeliverable. Guerra did not correct the address of record at any time prior to the IJ’s

order to remove in absentia. See 8 C.F.R. § 1003.15(d)(1). Guerra makes the bare assertion that

he provided the correct address, 4846 CB Place, Apt. A, Springdale, AR 72764, to the DHS and

therefore the incorrect address on both the NTA and order of release were due to no fault of his

own. However, Guerra’s mere assertions that he provided the correct address are not supported

by the evidence, and indeed are directly contradicted by his signatures on both the NTA and Order

of Release. The NTA specifically warned Guerra of the severe consequences for failing to update

his address.

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There is evidence that the DHS had at least some notification that Guerra’s correct address

was 4846 CB Place, Apt. A, Springdale, AR 72764. Guerra submitted a Form I-589 asylum

application listing his address as 4846 CB Place, Apt. A, Springdale, AR 72764, which was

received and pending as of February 27, 2017. The IJ did not send Guerra his NOH until March

3, 2017 to the address on his NTA, 4846 CB Place, Apt. 8, Springdale, AR 72764. Guerra’s asylum

application containing his correct address did not sufficiently notify the IJ that the address of record

on his NTA was incorrect, nor is there evidence this was Guerra’s intention. First, the application

does not mention the error of address on either the NTA or the Order of Release; and second,

Guerra did not complete or file a Form EOIR-33 as prescribed in the regulations. See 8 C.F.R.

§ 1003.15(d)(1). The asylum application did not give DHS or the IJ reason to question the address

provided on Guerra’s NTA and Order of Release. It was Guerra’s duty to provide the correct

address at which he could be reached. See Timchenko v. Holder, 485, F. App’x 813, 815-16 (6th

Cir. 2012) (holding the petitioner “bears the responsibility for any error that prevented the mail

from reaching him”). On February 28, 2018, the DHS filed a notice that it did not oppose Guerra’s

motion to reopen proceedings. This fact is admittedly unexplained on the record. The fact that

the DHS did not originally oppose Guerra’s motion did not absolve Guerra of his duty to provide

and update his correct and current address on the NTA and Order of Release nor bring the IJ’s

decision into the realm of the irrational, inexplicable, or impermissible type basis required to find

abuse of discretion. See Santos-Santos v. Barr, 917 F.3d 486, 489 (6th Cir. 2019).

In Thompson, the petitioner claimed to have provided the correct address to immigration

officials only to have the officials transcribe the wrong address. 788 F.3d at 645. As with Guerra,

Thompson signed his NTA, despite the erroneous address and failed to receive the notices of

hearing mailed to him. Id. Thompson, as with Guerra, was ordered removed in absentia and later

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moved to reopen proceedings against him. Id. The BIA denied his motion “on the basis that [he]

had failed to comply with the requirement that [he] inform the government of [his] current mailing

address, thereby forfeiting the right to notice of any subsequent removal proceeding against [him].”

Id. In Thompson, this court held that even if the immigration official makes a mistake, it still does

not absolve the petitioner because he has “both the opportunity to provide his current, correct

address at the time he receive[s] his [NTA] and the obligation to ensure that the [DHS] ha[s] an

address at which he c[an] be reached throughout the proceedings.” Id. at 647 (emphasis added).

This court underscored that this obligation “necessarily include[s] a duty to correct the address

listed on the [NTA], particularly since the [NTA] inform[s] [the petitioner] that all future mailings

w[ill] be sent to the address listed on the form.” Id.2

The address on Guerra’s NTA and Order of Release listed 4846 CB Place, Apt. 8,

Springdale, AR 72764. Guerra had both the opportunity and duty to correct this address. Guerra

signed the NTA and Order of Release, acknowledging the incorrect address. One who signs a

form, including in immigration cases, creates a strong presumption that he or she “conclusively

. . . [knows] its contents and . . . assent[s] to them.” Id. (internal citations omitted). Guerra,

therefore, created a strong presumption that he was aware of the error on both his NTA and Order

of Release. Despite the phone interactions with DHS and attendance at the required appointments

Guerra failed to correct the error in writing. Therefore, he cannot show that his lack of notice was

through no fault of his own. The alternative outcome would render “the requirements of 8 U.S.C.

§ 1229(a)(1)(F) and the related threat of in absentia removal relatively toothless.” Thompson, 788

F.3d at 647. Although, as in Thompson, there is nothing on the record showing that Guerra

2 In Timchenko, this court held that a petitioner did not meet his obligation to provide the court with a correct, current address when he failed to include his apartment number on the address he gave the court. 485 F. App’x at 816. -7- Case No. 20-3144, Guerra-Canales v. Barr

intentionally created this unfortunate situation, his lack of diligence in correcting the address on

his NTA has “led to the very problem that the relevant statutory and regulatory provisions are

designed to avoid.” Id. at 648.3

Guerra alternatively asserts that his sister, who resided at 4846 CB Place, Apt. A,

Springdale, AR 72764, was having issues receiving mail around the time his NOH was sent, and

that this then led to his lack of notice. The record indicates that his sister moved apartments within

the same building and ultimately consulted with post office officials in order to remedy her

delivery problems. However, Guerra and his sister have different first and last names and

confusion over where to deliver her mail, labeled with her name, would most likely not interrupt

Guerra’s mail, in his name, to the correct address. His sister’s mail issues, while unfortunate, are

collateral to the fact that the IJ mailed notice to the address on the NTA, which Guerra failed to

correct. Therefore, Guerra cannot show that his failure to update his address in writing and the

resulting lack of notice of his hearing were of “no fault of his own.” See 8 U.S.C. § 1229a(b)(5)(C).

B.

Guerra argues that the IJ abused its discretion when it failed to consider the seven factors

laid out in Matter of M-R-A-, 24 I&N Dec. 665 (B.I.A. 2008). In order to overcome the

presumption of delivery that arises when an NTA is properly mailed to the last address provided

by the alien, the petitioner must show “(1) that he provided the court with a correct, current address;

3 Other circuit court decisions also support this theory. See Meng Hua Wan v. Holder, 776 F.3d 52, 57 (1st Cir. 2015) (denying a petitioner’s motion to rescind an in absentia order due to a wrong zip code on the petitioner’s NTA); Gomez-Palacios v. Holder, 560 F.3d 354, 360 (5th Cir. 2009) (emphasizing “an alien’s failure to receive actual notice of a removal hearing due to his neglect of his obligation to keep the [I]mmigration [C]ourt apprised of his current mailing address does not mean that the alien ‘did not receive notice’”); Maghradze v. Gonzales, 462 F.3d 150, 154 (2d Cir. 2006) (holding the fact that the NTA had an incorrect address was substantial evidence that the petitioner did not supply the correct address). -8- Case No. 20-3144, Guerra-Canales v. Barr

and (2) that the notice was never received.” Thompson, 788 F.3d at 643 (internal citations omitted).

The M-R-A- factors help a court determine whether the petitioner has overcome the presumption

of delivery. 24 I&N Dec. at 674. See also Ly v. Holder, 327 F. App’x 616, 621-24 (6th Cir. 2009)

(applying the M-R-A- factors revealed that petitioner failed to rebut the presumption of delivery;

petitioner, therefore, had to fulfill the obligation stated on the NTA to update his address). The

presumption of delivery is not at issue in this case—only whether the lack of notice was Guerra’s

fault.

Having “failed to provide the immigration court with his updated address as required by

8 U.S.C. § 1229(a)(1)(F)(ii),” Guerra has “no basis to object to his lack of notice and, pursuant to

§1229a(b)(5)(B), to his removal in absentia.” Id. at 644. Further, in M-R-A-, the BIA stated that

“Immigration Judges are neither required to deny reopening if exactly such evidence is not

provided nor obliged to grant a motion, even if every type of evidence is submitted. Each case

must be evaluated based on its own particular circumstances and evidence.” 24 I&N Dec. at 674

(emphasis added). The BIA stressed that once “a respondent has received a [NTA], he must

comply with this statutory responsibility” and “affirmative duty” to update his address “with the

DHS in writing and to notify the Immigration Court immediately by filing a Form EOIR-33.” Id.

at 675. It held that “a respondent cannot evade delivery of a properly sent Notice of Hearing by

relocating without providing the required change of address and then request reopening of in

absentia proceedings on the basis of a claim that he did not receive notice.” Id. (internal citations

omitted). The BIA’s reasoning in M-R-A- naturally extends to the idea that an alien may not evade

delivery of a properly sent NOH by failing to update his incorrect address provided on his NTA.

Guerra cannot now rely on his failure to receive a hearing notice as a basis for reopening

his removal proceedings. There is no dispute that the IJ mailed Guerra’s NOH to the address listed

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on his NTA, 4846 CB Place, Apt. 8, Springdale, AR 72764. Guerra did not provide the IJ with a

correct, current address to which notification could be mailed. Therefore, the IJ did not abuse its

discretion in denying Guerra’s motion to reopen proceedings.

C.

“A party forfeits an issue that it does not raises in its briefs.” Garcia-Morales v. Sessions,

712 F. App’x 559, 562 (6th Cir. 2017) (internal citations omitted). Guerra failed to raise any issue

regarding the IJ’s decision to decline reopening his proceedings sua sponte or the BIA’s

affirmation of the same. Therefore, Guerra has forfeited the issue of whether the IJ abused its

discretion by not reopening proceedings sua sponte.

IV.

Based on the foregoing reasons, we DENY Guerra’s petition for review.

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